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Ali Mea and anr. Vs. Nana Gazi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.430
AppellantAli Mea and anr.
RespondentNana Gazi
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 4 - appeal--death of sole respondent--heirs, some, brought on record, effect of--abatement of appeal. - 1. the suit out of which this appeal arises, was one for recovery of rent and was brought by one nana gazi. the suit was decreed by the lower appellate court in favour of nana gazi (the plaintiff) and the defendant has preferred the second appeal.2. during the pendency of the appeal in this court, the sole plaintiff-respondent died and an application was made for substitution of his representatives. some of them were minors and they were given up on behalf of the appellant, the result being that some only of the heirs of the deceased plaintiff were substituted and the appeal was dismissed as against the minor heirs.3. a preliminary objection has been taken at the hearing of the appeal that the appeal, as now constituted, cannot proceed we think that this objection must prevail.4. nana.....
Judgment:

1. The suit out of which this appeal arises, was one for recovery of rent and was brought by one Nana Gazi. The suit was decreed by the lower Appellate Court in favour of Nana Gazi (the plaintiff) and the defendant has preferred the second appeal.

2. During the pendency of the appeal in this Court, the sole plaintiff-respondent died and an application was made for substitution of his representatives. Some of them were minors and they were given up on behalf of the appellant, the result being that some only of the heirs of the deceased plaintiff were substituted and the appeal was dismissed as against the minor heirs.

3. A preliminary objection has been taken at the hearing of the appeal that the appeal, as now constituted, cannot proceed We think that this objection must prevail.

4. Nana Gazi was the sole plaintiff respondent; and his rights as landlord devolved, on his death, on his heirs as a whole. The decree which was passed in favour of the plaintiff cannot be split up; that is, it cannot be allowed to stand in favour of some of the heirs and set aside as against the others. The heirs constitute one body and they should all have been substituted in order that the plaintiff's interests might be fully represented in the appeal.

5. The appeal is dismissed with costs.


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